The Term Is the Media Policy

Media policy is discussed as ownership, platforms and distribution. The instrument with the longest reach is a duration, and it is almost never discussed at all.

The provision setting the term determines how long a work is controlled and when it passes into the material anyone may use.

A term is a bargain. The public grants exclusivity to induce creation, and in exchange the work eventually becomes common property.

Both halves are the point. A term too short weakens the inducement; a term too long defers the return the public was promised for granting it.

The bargain has only ever been renegotiated in one direction. Terms have been extended repeatedly and shortened never, which is not a pattern you would expect from a balanced instrument.

The international dimension is what makes unilateral change difficult and is often cited as though it made it impossible.

The reason is the familiar asymmetry. Extension concentrates enormous value on a small number of identifiable owners and spreads a diffuse cost across everyone else.

Terms are coordinated by treaty, and a state that shortened its own would find its works still controlled elsewhere, which limits the practical benefit.

The owners are organised and know precisely what a term is worth. The public has no representative in the room whose job is the other side of the bargain.

That is a real constraint on shortening and no constraint at all on the smaller reforms: registration in the later decades, published review, better records of what is still in commerce.

The office that administers it publishes the framework and the records, and the records show how much of the still-controlled catalogue has no commercial life at all.

Those require no renegotiation with anybody, which is a useful test of whether the international argument is being made in good faith or used as a reason not to act.

That is the orphan problem and it is the strongest argument against long terms. A work still owned but not exploited is unavailable to everyone, including its owner.

Nobody benefits from that state. The owner earns nothing, the public gets nothing, and the work sits unreissued because the cost of clearing rights exceeds any plausible return.

The proportion of the controlled catalogue in this condition is very large, and it grows with every extension, because extension applies to everything rather than to what is being sold.

The regulations handle registration and recordation, which is where a fix could sit: a renewal step would separate works somebody wants from works nobody is using.

Formalities of that kind were abandoned for good reasons, chiefly that authors lost rights through paperwork failures, and the reasons still hold.

But a renewal requirement applying only in the later decades of a term would not catch a working author unaware; it would catch only owners who had stopped caring.

The national collections hold enormous quantities of material in exactly this position: preserved, catalogued, and unusable by anyone who wants to build on it.

The cost of that is invisible in the way all counterfactual costs are. Nobody can point to the work that was not made because the source was unavailable.

Which is why the argument is always won by the side that can point to a specific revenue stream, against a side that can only describe an absence.

There is a second effect that is easier to see, which is what long terms do to the accuracy of the record.

A period whose material is under term is documented through what rights holders permit, and that is a filtered account of what actually existed.

Historians of earlier periods work from a full record because it fell out of term. Historians of this one will work from whatever was licensed, which is not the same thing.

The reform does not require shortening anything. It requires that the term be reviewed on a schedule, with a published account of what is still in commerce and what is merely still owned.

A bargain nobody ever checks is not a bargain. It is a grant, and it has been treated as one for a long time.